^ "The term 'Commonwealth' does not describe or provide for any specific political status or relationship. It has, for example, been applied to both states and territories. When used in connection with areas under U.S. sovereignty that are not states, the term broadly describes an area that is self-governing under a constitution of its adoption and whose right of self-government will not be unilaterally withdrawn by Congress." [6]

The U.S. has sixteen territories in the Caribbean Sea, the south Pacific Ocean, and the western portion of the north Pacific Ocean. Five of them are permanently inhabited and are classified as unincorporated territories. The other eleven are small islands, atolls, and reefs with no native or permanent population. Of those eleven, only one is classified as an incorporated territory.

Many organized incorporated territories of the United States existed from 1789 to 1959. The first were the Northwest and the Southwest territories and the last were the Alaska Territory and the Hawaii Territory . Thirty-one of these territories applied for and were granted statehood. In the process of organizing and promoting territories to statehood, some areas of a territory lacking sufficient development and population densities were temporarily orphaned from parts of a larger territory when residents voted on whether to petition Congress for statehood. For example, when a portion of the Missouri Territory became the state of Missouri , the remaining portion of the territory, consisting of all the states of Iowa, Nebraska, South Dakota, and North Dakota, most of Kansas, Wyoming, and Montana, and parts of Colorado and Minnesota, effectively became an unorganized territory.

U.S. territories tend to have infrastructure and telecommunications inferior to the United States mainland; for example, American Samoa's Internet speed was found to be slower than several Eastern European countries. [61]

Existing territories and their legal status

Territories have always been a part of the U.S. [62] According to federal law, the term "United States", when used in a geographical sense, means "the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the United States Virgin Islands". [9] Since political union with the Northern Mariana Islands in 1986, they too are treated as a part of the U.S. [9] An executive order adopted in 2007 includes American Samoa in the U.S. "geographical extent" as reflected in U.S. Department of State documents.

Approximately 4 million people in these territories are U.S. citizens. American Samoa has about 32,000 non-citizen U.S. nationals. Under U.S. law, among the territories, "only persons born in American Samoa and Swains Island are non-citizen U.S. nationals." [13] American Samoans are under the protection of the U.S., with the ability to travel to the U.S. without a visa. [13]

Each of these territories is an organized, self-governing territory with three branches of government, a locally elected governor, and a territorial legislature.

Every four years, U.S. political parties nominate their presidential candidates at conventions, which include delegates from these territories. [6] The U.S. citizens living in Puerto Rico and the U.S. Virgin Islands, however, cannot vote in the general election for president of the U.S.

These territories pay some U.S. taxes and are under the protection of U.S. courts.

Incorporated and unincorporated territories

The U.S. Congress decides whether a territory is incorporated or unincorporated. The entire U.S. constitution applies to each incorporated territory, including its local government and all of its inhabitants, in the same manner as it applies to the local governments and residents of a state . Incorporated territories are considered an integral part of the U.S., not mere possessions. [6]

From 1901 to 1905, the U.S. Supreme Court in a series of cases known as the Insular Cases held that the constitution extended by its own force to U.S. territories. The Court in these cases, however, also established the doctrine of territorial incorporation, under which the constitution applies fully to incorporated territories, such as the territories of Alaska and Hawaii , and applies partially in the unincorporated territories of Puerto Rico, Guam, and the Philippines.

The U.S. had no unincorporated territories (also called "overseas possessions" or " insular areas ") until 1856. In that year, the U.S. Congress enacted the Guano Islands Act, which authorised the president to take possession of unclaimed islands to mine guano . Under this law, the U.S. has taken control of and claimed rights in many islands, atolls, etc., especially in the Caribbean Sea and the Pacific Ocean, most of which have since been abandoned. The U.S. also has acquired territories since 1856 under other circumstances, such as under the Treaty of Paris (1898) that ended the Spanish–American War . The U.S. Supreme Court considered the constitutional position of these unincorporated territories in Balzac v. People of Porto Rico , where the Court said the following about a U.S. court in Puerto Rico: : 312

The United States District Court is not a true United States court established under article 3 of the Constitution to administer the judicial power of the United States.... It is created ... by the sovereign congressional faculty, granted under article 4, 3, of that instrument, of making all needful rules and regulations respecting the territory belonging to the United States. The resemblance of its jurisdiction to that of true United States courts, in offering an opportunity to nonresidents of resorting to a tribunal not subject to local influence, does not change its character as a mere territorial court.

In Glidden Company v. Zdanok , the U.S. Supreme Court cited the Balzac case and said with regard to courts in unincorporated territories, "Upon like considerations, Article III has been viewed as inapplicable to courts created in unincorporated territories outside the mainland ... and to the consular courts established by concessions from foreign countries...." [63] : 547

The U.S. Supreme Court has recognized two ways in which incorporation could be made: "incorporation is not to be assumed without express declaration, or an implication so strong as to exclude any other view."

Express or implied?

In the Balzac case, the Court defined the meaning of "implied": : 306

Had Congress intended to take the important step of changing the treaty status of Puerto Rico by incorporating it into the Union, it is reasonable to suppose that it would have done so by the plain declaration, and would not have left it to mere inference. Before the question became acute at the close of the Spanish War, the distinction between acquisition and incorporation was not regarded as important, or at least it was not fully understood and had not aroused great controversy. Before that, the purpose of Congress might well be a matter of mere inference from various legislative acts; but in these latter days, incorporation is not to be assumed without express declaration, or an implication so strong as to exclude any other view.

U.S. Supreme Court decisions about particular territories

The U.S. Supreme Court in Rassmussen v. U.S. first quoted from Article III of the 1867 treaty for the purchase of Alaska and then said, "'The inhabitants of the ceded territory ... shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States....' This declaration, although somewhat changed in phraseology, is the equivalent ... of the formula, employed from the beginning to express the purpose to incorporate acquired territory into the United States, especially in the absence of other provisions showing an intention to the contrary." [64] : 522

Alaska Territory

The Rassmussen case arose out of a criminal conviction by a six-person jury in Alaska under a federal law allowing this procedure there. The Court held that Alaska had been incorporated into the U.S. because of the treaty of cession with Russia. In addition, the Congressional implication was so strong as to exclude any other view: [64] : 523

That Congress, shortly following the adoption of the treaty with Russia, clearly contemplated the incorporation of Alaska into the United States as a part thereof, we think plainly results from the act of July 20, 1868, concerning internal revenue taxation ... and the act of July 27, 1868 ... extending the laws of the United States relating to customs, commerce, and navigation over Alaska, and establishing a collection district therein. ... And this is fortified by subsequent action of Congress, which it is unnecessary to refer to.

In his concurring opinion, Justice Brown expressed the same thought: [64] : 533-4

Apparently, acceptance of the territory is insufficient in the opinion of the court in this case, since the result that Alaska is incorporated into the United States is reached, not through the treaty with Russia, or through the establishment of a civil government there, but from the act ... extending the laws of the United States relating to the customs, commerce, and navigation over Alaska, and establishing a collection district there. Certain other acts are cited, notably the judiciary act ... making it the duty of this court to assign ... the several territories of the United States to particular Circuits.

Florida Territory

In Dorr v. U.S. , the U.S. Supreme Court quoted Chief Justice Marshall from an earlier case as follows: [65] : 141-2

"The 6th article of the treaty of cession contains the following provision: 'The inhabitants of the territories which His Catholic Majesty cedes the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.' ... This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government till Florida shall become a state. In the meantime Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress "to make all needful rules and regulations respecting the territory or other property belonging to the United States.'"

In Downes v. Bidwell , the Court said, "The same construction was adhered to in the treaty with Spain for the purchase of Florida ... the 6th article of which provided that the inhabitants should 'be incorporated into the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution.'" [6] : 256

Southwest Territory

In the Downes case, the first mention of incorporation is made in the following paragraph by Justice Brown: [6] : 321-2

In view of this it cannot, it seems to me, be doubted that the United States continued to be composed of states and territories, all forming an integral part thereof and incorporated therein, as was the case prior to the adoption of the Constitution. Subsequently, the territory now embraced in the state of Tennessee was ceded to the United States by the state of North Carolina. In order to insure the rights of the native inhabitants, it was expressly stipulated that the inhabitants of the ceded territory should enjoy all the rights, privileges, benefits, and advantages set forth in the ordinance 'of the late Congress for the government of the western territory of the United States.

Louisiana Territory

Owing to a new war between England and France being upon the point of breaking out, there was need for haste in the negotiations, and Mr. Livingston took the responsibility of disobeying his (Mr. Jefferson's) instructions, and, probably owing to the insistence of Bonaparte, consented to the 3d article of the treaty (with France to acquire the territory of Louisiana), which provided that 'the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess.' [8 Stat. at L. 202.] This evidently committed the government to the ultimate, but not to the immediate, admission of Louisiana as a state....

The U.S. Supreme Court is unanimous in its interpretation that the extension of the privileges and immunities clause of the U.S. Constitution to the inhabitants of a territory in effect produces the incorporation of that territory. The net effect of incorporation is that the territory becomes an integral part of the geographical boundaries of the U.S. and cannot, from then on, be separated. The whole body of the U.S. Constitution is extended to the inhabitants of that territory, except for those provisions that relate to its federal character.

Moreso, the needful rules and regulations of the territorial clause must yield to the Constitution and the inherent constraints imposed on it in dealing with the privileges and immunities of the inhabitants of the incorporated territory.

Notice must be taken that incorporation of a territory takes place through the incorporation of its inhabitants, not of the territory per se . As such, those inhabitants receive the full impact of the U.S. Constitution, except for those provisions that deal specifically with the federal character of the Union.

Organized territory

Lands under the sovereignty of the federal government (but not part of any state) that were given a measure of self-rule by the Congress through an Organic Act subject to the Congress' plenary powers under the territorial clause of Article IV, sec. 3, of the U.S. Constitution.

Classification of current U.S. territories

Incorporated organized territories

No incorporated organized territory has existed since 1959, with the last two being the territories of Alaska and Hawaii, both of which achieved statehood in that year.

Incorporated unorganized territories

Many incorporated unorganized territories became incorporated organized territories or states. For example, when the eastern part of the incorporated organized territory called Minnesota became the state of Minnesota in 1858, the western part became part of an unorganized territory. Later, that became a part of the Dakota Territory, out of which two states and some parts of other states were created. California was part of an unorganized territory when it became a state.

Administered by Colombia; site of a naval garrison. Claimed by the U.S (since 1879 under the Guano Islands Act), Honduras, and Jamaica. A claim by Nicaragua was resolved in 2012 in favor of Colombia by the International Court of Justice , although the U.S. was not a party to that case and does not recognize the jurisdiction of the ICJ.

Administered by Colombia. Claimed by the U.S. (under the Guano Islands Act) and Jamaica. A claim by Nicaragua was resolved in 2012 in favor of Colombia by the International Court of Justice, although the U.S. was not a party to that case and does not recognize the jurisdiction of the ICJ.

Extraterritorial jurisdiction

Guantanamo Bay Naval Base (since 1903): A 45 square miles (120 km 2 ) land area along Guantánamo Bay , Cuba , to which the U.S. claims to hold a perpetual lease. [62] The Cuban government does not recognize this claim and has refused to accept any payment since 1959. The lease amount is US$2,000 in gold per year. [62]

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"A Digest of International Law as Embodied in Diplomatic Discussions, Treaties and Other International Agreements, International Awards, the Decisions of Municipal Courts, and the Writings of Jurists and Especially in Documents, Published and Unpublished, Issued by Presidents and Secretaries of State of the United States, the Opinions of the Attorneys-General, and the Decisions of Courts, Federal and State"